Bus driver loses appeal over health and safety dismissal

A bus driver has lost his claim of unfair dismissal in a case that highlights the issue of who is responsible for health and safety at work.

Mr J Castano was a driver with London General Transport Services, working out of the Putney bus garage.

In 2017, he raised concerns with his managers about an incident whereby he declined to put passengers’ health and safety at risk by immediately responding to a text from the controller while driving his bus. 

He claimed he was then treated unfairly by the employer and ultimately dismissed. He brought claims for detriment and unfair dismissal under the Employment Rights Act.

His claim was based on the fact that he was required to hold a Public Carrying Vehicle (PCV) licence and, as such, had health and safety responsibilities for passengers, other motorists and road users. He argued that his PCV licence meant he was being treated as a designated health and safety person of the employer.

He accepted that there was a health and safety representative at the garage. However, he argued that his bus route, and not the garage, was his place of work. The tribunal rejected those arguments and struck out his claims.

The Employment Appeal Tribunal has upheld that decision.

It held that the fact that employees also had some health and safety obligations as part of their duties did not mean that they had been “”designated”” to carry out the more specific role. If Mr Castano’s argument was right, all the employer’s drivers holding PCV licences would have been designated as health and safety officers.

They plainly were not.

Mr Castano had argued that his “”place of work”” was his bus, and not the garage from which he operated. However, the statutory provisions clearly envisaged the place of work as being the location at which the employee’s job was based, even if their job function required them to be away from that location for some or even most of the time.

Please contact Sorcha Monaghan if you would like more information about the issues raised in this article or any aspect of employment law.

Bus driver loses appeal over health and safety dismissal

J CASTANO v LONDON GENERAL TRANSPORT SERVICES LTD (2019)

EAT (Eady J) 29/10/2019